concurring:
I concur in the result reached by Judge Garth and also with his opinion insofar as it relates to the foreclosure sale provision. With respect to the possessory lien, I agree that the grant of summary judgment for the defendants was not erroneous. This is so because in my judgment it has not been established, at least in this case, that the common law retention mechanism is repugnant to the requirements of the due process clause of the fourteenth amendment.1
Since these conclusions would be sufficient to dispose of the ease without delving into the problem whether the possessory lien implicates state action, I ordinarily would not write separately. State action questions, however, form a fundamental element of much important litigation before this Court. Thus, in view of the fact that I am unable to subscribe to the state action *144analysis regarding the possessory lien set forth by the plurality I find it appropriate to record the following comments.
Resolving the question whether ostensibly private conduct, such as retention of personal property by repairmen, should be deemed “state action” and thus subject to the panoply of constitutional restraints is a perplexing task. The difficulties posed by the inquiry are amplified by the fact- that the Supreme Court has not as yet formulated a unitary theory of state action. Rather, it has delineated a set of categories for assessing the wide variety of factual patterns that concern conduct claimed to be performed under color of state law..2
It would appear that the rubric that is most apposite to this case is that of “public function.” On a number of occasions, the Supreme Court has indicated that purportedly private activity will be deemed to be the exercise of a public function if the conduct in question is one “which is traditionally associated with sovereignty.”3
Public function cases may not, at first glance, appear to embody instances of state action since the state itself is not performing the disputed conduct. The Supreme Court, however, has indicated that the identity of the actor is not dispositive for the purposes of state action. If the type of activity involved is governmental in nature, it will be deemed state action whether performed by a public employee or a private person.4
Both Judge Garth and Judge Hunter seem to agree that the critical aspect of the state action inquiry in this case is whether a public function is present,5 but they appear to conclude that retention of a vehicle pursuant to a common law garageman’s lien cannot be so characterized. Several interrelated rationales appear to undergird their position. Judge Garth and Judge Hunter reject the contention that since the garageman’s lien is, at least in part, a device for conflict resolution, it must be considered to be the exercise of a delegated public function. Support for this approach, they claim, is found in this Court’s opinion in Gibbs v. Titelman.6 Moreover, both *145Judge Garth and Judge Hunter maintain, although with varying degrees of intensity, that the ancient lineage of the lien is relevant to the public function analysis.7 Since the lien has hoary antecedents, they urge that detention of property pursuant to such a lien is not a power “traditionally, exclusively reserved to the state.” Finally, Judge Garth asserts that the retention of vehicles belonging to customers who have not paid their bills is not an activity connected with any attribute of sovereignty; instead, he declares, it is an attribute of possession. To buttress this contention, the plurality invokes the rationale adopted by the First Circuit in Davis v. Richmond8 in determining that detention pursuant to a boardinghouse lien was not state action.9 The First Circuit stated that the exercise of such a lien is not a public function since the lienholder could, “in a state of nature,” reasonably detain the property, and with the advent of organized society would still not need the assistance of the state in so acting.10
The difficulty with the propositions advanced by Judges Garth and Hunter begins with the decision to concentrate upon the particular conduct involved, /. e. detainer pursuant to a common law lien, as distinguished from the broader generic category of resolution of conflicts.11 The approach of focusing on the particular activity in question, it would seem, has two flaws. First, it tends to obscure the inquiry that illuminates the intellectual justification of the public function rule: namely, whether the type of activity involved is ordinarily associated with the state, thus requiring that its exercise be subjected to constitutional limitations.
Second, and perhaps more important, the emphasis on the specific conduct has led Judge Garth and Judge Hunter to stress the antiquity of the possessory lien as a key element of the public function discussion. Their point appears to be that, since the common law detainer right is a venerable tool employed in private conflict resolution, it cannot be said to be a traditional function of the sovereign. Thus, the reasoning goes, the use of such a lien does not constitute state action.
*146The possessory lien here is, of course, an historic one whose origin predates the passage of the fourteenth amendment. Unlike Judge Garth and Judge Hunter, however, I believe that such a consideration should not be controlling for the purposes of the state action question. That a practice existed prior to 1867. should not, standing alone, be sufficient to insulate it from constitutional scrutiny. The inescapable fact is that promulgation of the fourteenth amendment substantially changed the legal landscape, and requires that once-sacrosanct customs be examined anew.12
Moreover, the origins of the lien asserted by a repairman, origins that are concededly private, would not appear to be dispositive of the public function-state action question. The command of the fourteenth amendment that only state action be subject to constitutional restraints is, of course, immutable, but the content of “state action” is flexible. Indeed, the notion as to which activities are governmental in character is, and in a dynamic society ought to be, evolutionary in nature.13 This is so if the Constitution is to serve the body politic in a salutary fashion.
Thus though it may well be that detention of property pursuant to a repairman’s lien was viewed in medieval England as a purely private mode of resolving conflicts, such is not the case today. The conception of the state and its role in ordering social relationships has been significantly altered since the Middle Ages, as have ideas about the locus of power to adjudicate disputes. Conflict resolution is now seen as one of the core attributes of the sovereign.14 It would seem to follow that any person or entity that has the power unilaterally to resolve a controversy whether under color of common law or statute, is a delegate of an essentially governmental activity.
For similar reasons, it would appear that the analysis set forth in Davis v. Richmond,15 which has been adopted by the plurality, misses the mark as well. It is respectfully suggested that the relevant question is not, as Davis indicates, what was the legal status of retention pursuant to an artisan’s lien in the “state of nature.” Rather, the pertinent inquiry is how the practice fits in with modern conceptions of the state, and particularly with the idea of the state as viewed from the vantage point of the fourteenth amendment.
In addition, I cannot share the view of the Davis Court that the state is not at all implicated in the retention of personal property pursuant to a common law lien. Every time a case dealing with an artisan’s *147lien has come before the courts of Pennsylvania and every time these courts have placed their imprimatur on that practice, the state, as a practical matter, has lent its aid to the detainer of another person’s property. If the retention were accomplished pursuant to a state statute, it would not be disputed that the state had rendered some assistance, at the very least, to the artisan. To suggest that our attitude should be different when the same activity finds its warrant in the common law would be tantamount to resurrecting the notion that common law is less a part of the law of a state than statutory enactments, a construct that has been uniformly rejected at least since Erie R. R. v. Tompkins.16
My point is not that the implication of the state in the garagemen’s lien is dispositive of the state action inquiry, for such an approach would surely dissolve the limitations on the applicability of constitutional restraints that are inherent in the state action concept. Rather, the point is that it cannot fairly be asserted that the state stands wholly apart from that activity and that common law liens are automatically removed from the ambit of state action.
These considerations would seem to suggest that the possessory lien, whether or not its ancestry can be traced to the common law, is state action. By virtue of the possessory lien the artisan has an important, albeit not conclusive, weapon in resolving disputes with owners regarding the authorization for and cost of certain repairs. This mechanism relieves the repairman of having to take the initial step into court.17 Instead, it allows him to act on the temporary assumption that he will prevail on the merits of his claim, and then requires the owner to resort to the authorities. In addition, the lien permits the repairman to transform a limited bailment of property into a nonconsensual and potentially open-ended deprivation of the rights of the owner to his vehicle. The ability ex parte to effect such determinations of controversies between repairmen and owners, even though interim in nature, would appear to be part of the sovereign’s power to resolve conflicts.18
*148A comparison between this case and prior precedents concerning creditors’ remedies, in which the courts have assumed the existence of state action and proceeded to find due process violations, would seem to support the proposition that state action is present here. In Fuentes v. Shevin,19 for example, a creditor, after a dispute had arisen over the final payments of a consumer loan, had certain chattels seized by a sheriff pursuant to a writ of replevin. And in Sniadach v. Family Finance Corp.,20 a creditor, through a court action, was able to effect a pre-judgment garnishment of the wages of a debtor.
The fact pattern of the present case is quite similar: a creditor who has a dispute with a debtor, is in effect, holding some of the debtor’s property as “hostage” in order to strengthen his position. It is true that whereas the Fuentes and Sniadach defendants were obliged to enlist minor governmental functionaries to perform ministerial acts, the garagemen here, already in possession of the debtor’s property by dint of the limited bailment, did not have to make use of such services. But I do not believe that this factual difference should cause divergent conclusions as to the presence, vel non, of state action, particularly because the similarities are more significant. The creditor in all cases is utilizing a governmentally-approved power of detainer as a weapon in his dispute with the debtor. The defendants in Fuentes and Sniadach, as well as the garagemen in this case, are delegates of the state’s conflict determination mechanism. This might well require the uniform application of the fourteenth amendment safeguards.
Further, the type of harm suffered by the plaintiffs here would seem to parallel that inflicted upon the plaintiffs in Fuentes and Sniadach. In those two cases, the financially-strapped debtors were deprived of the use of vital chattels or cash. The Supreme Court noted that the purportedly provisional nature of creditors’ remedies being utilized in those situations could transmute into a final disposition of the controversy, since the debtor might have a critical need for the detained chattel or cash and might thus be forced to yield to the creditor’s demands in order to regain his property.21 The same point could be made about the plaintiffs in this case with respect to the detained vehicles. It would appear that if the protections of due process were needed to cushion the exercise of the dispute resolution mechanism in Fuentes and Sniadach, they may well be equally essential in the situation before us.22
Although the state action analysis articulated here is not as potentially expansive as that set forth in Judge Gibbons’ opinion, it nonetheless could have the effect of augmenting to some degree the already large docket of section 1983 suits. But the solution to the docket problem should not lie in an unduly narrow interpretation of state action, a constitutional concept. Instead, since section 1983 is an act of Congress, the proper remedy for the increasing flow of these suits would be for the legislature to revise the applicable legislation if it believes such a step to be appropriate23
. Chief Judge Seitz, in his concurring and dissenting opinion, raises a number of provocative points in connection with the due process aspect of the procedure by which the owner of an automobile may regain the vehicle after a garageman’s lien has been asserted. As Judge Gibbons points out in his opinion, the resolution of the due process problem in this type of situation requires a balancing of the interests that are implicated — those of the garageman as well as those of the automobile owner. Since the necessary empirical data for a complete weighing of the interests has not been presented in this case, it would seem more appropriate to postpone a definitive interpretation of this important and perplexing problem until such material has been made available to the Court and fully considered. Such factors would include, for example, what might happen to automobile owners whose cars need repairs if the garageman does not obtain a lien. Will the garageman decline to render the needed service? Will it worsen the financial plight of the less affluent car owner? Will it result in demands for deposits before work proceeds? Will it result in written agreements before repairs are undertaken? The fact that the majority of the Court does not even address this point, makes caution here even more appropriate.
. See Braden v. University of Pittsburgh, 552 F.2d 948 at 956 (3d Cir. 1977); The Supreme Court, 1974 Term, 89 Harv.L.Rev. 17, 151 (1975).
. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352-53, 95 S.Ct. 449, 454, 42 L.Ed.2d 477 (1975). See Evans v. Newton, 382 U.S. 296; 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); Smith v. All-wright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944).
. See, e. g., Marsh v. Alabama, 326. U.S. 501, 507-08, 66 S.Ct. 276, 90 L.Ed. 265 (1946); id. at 501-511, 66 S.Ct. 276 (Frankfurter, J., concurring).
. Judge Gibbons departs from this consensus by asserting that the public function cases are irrelevant in the present context. The basis for this conclusion is that the garagekeeper here “is acting on his own behalf, not for the public.” Opinion of Gibbons, J., at 152.
In my view, however, there are three deficiencies in this proposition. First, it would appear that the suggested dichotomy between acting for oneself and acting for the public is a somewhat illusory one. The motivation for human conduct is not an all-or-nothing proposition. People often act based upon a complex combination of goals. Cf. Washington v. Davis, 426 U.S. 229, 253, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (Stevens, J., concurring). Moreover, in view of the increasing difficulty of maintaining a bright line between state and private action, a fact attested to by the diverse opinions in this very case, it is questionable whether the viability of this distinction could long be maintained.
Second, even assuming that this is a serviceable distinction, I do not believe that it is consistent with the extant public function cases. In Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), for example, it would seem that the managers of the company town, were acting for their own benefit rather than that of the public in prohibiting the Jehovah’s Witnesses-from distributing pamphlets on the streets of the town. Yet, the Supreme Court found state action in that situation.
Finally, the proposed explanation of the. public function principle appears to misconstrue the essence of that doctrine. As I understand it, the fundamental question is not whether the purportedly private actor perceives himself as acting for the public. Rather, the inquiry is whether.the type of activity in question is usually associated with the sovereign.
. 502 F.2d 1107 (3d Cir.), cert. denied sub nom. Gibbs v. Garver, 419 U.S. 1039, 95 S.Ct. 526, 42 L.Ed.2d 316 (1974). In Gibbs, a panel of this *145Court held that self-help repossession of automobiles pursuant to a clause in a security agreement, as authorized by §§ 9-503 and 9-504 of the Uniform Commercial Code, did not constitute state action. Since it is a panel opinion, Gibbs would not ordinarily bind the Court en banc. In view of the Supreme Court’s summary action in a case raising the same issues as Gibbs and reaching the same result, Benschoter v. First Nat’l Bank, 218 Kan. 144, 542 P.2d 1042 (1975), appeal dismissed for want of a substantial federal question, 425 U.S. 928, 96 S.Ct. 1656, 48 L.Ed.2d 170 (1976), however, the Gibbs holding would appear to be unassailable by this Court at this point. See Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975).
As I shall indicate, see note 18 infra, my disagreement with the majority in this case does not mean that I take issue with the result reached in Gibbs.
. As I read Judge Hunter’s concurrence, it appears to be stating that although he disapproves of inquiries regarding lineage, at least in the general run of state action disputes, he believes that the lineage factor has a limited place in public function cases.
. 512 F.2d 201 (1st Cir. 1975).
. The circuits are divided on the question passed upon by the Davis Court. The Seventh Circuit concurs in the First Circuit’s conclusion that a boardinghouse lien does not involve state action. Anastasia v. Cosmopolitan Nat’l Bank, 527 F.2d 150 (7th Cir. 1975). The Ninth and Fifth Circuits have decided that such a practice does constitute state action. See Culbertson v. Leland, 528 F.2d 426 (9th Cir. 1975); Hall v. Garson, 430 F.2d 430 (5th Cir. 1970).
. See 512 F.2d at 204-05.
One other court of appeals has ruled on the question whether detention pursuant to a garageman’s lien is state action. In Phillips v. Money, 503 F.2d 990 (7th Cir. 1974), the Seventh Circuit decided that state action was not present. The Phillips Court, however, did not analyze the public function issue.
. The broader approach would seem to find support in the various White Primary Cases. See, e. g. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932). In those cases, the Supreme Court did not ask whether the specific activities in question were public functions. Rather, it inquired whether these activities were part of the electoral process, which is, of course, one of the attributes of sovereignty.
. This point is well illustrated by the many cases that have passed upon the constitutionality of the procedural aspects of creditors remedies. See, e. g. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Jonnet v. Dollar Savings Bank, 530 F.2d 1123 (3d Cir. 1976). Certainly replevin and pre-judgment garnishment are procedures with origins that predate the fourteenth amendment. Yet this did not shield them from constitutional scrutiny. I do not believe that our inquiry should be different when we are asked to examine the state action aspect of a creditor’s remedy as well as its procedural constitutionality. See Opinion of Gibbons, J., at 155.
. Cf. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415, 4 L.Ed. 579 (1819) (Marshall, C. J.) (The Constitution is “intended to endure for ages to come” and is “consequently, to be adapted to the various crises of human affairs.”) (emphasis in original).
. Judge Hunter seems to suggest that all conflict resolution would be state action if the state affirmatively chose to “arrogate to itself all modes of conflict resolution.” Opinion of Hunter, J. at n. 1 (emphasis in the original). He concludes, however, that the mere possibility that this could happen is insufficient to transform into state action modes of conflict resolution that are currently in private hands.
The state action issue, as I see it, however, does not revolve about the possibility that the state, if it so chooses, could arrogate to its direct supervision all conflict resolving functions. As Judge Hunter aptly notes, such an analytical touchstone would make all conduct state action. What we must determine, however, is whether conflict resolution is so associated with the state that its exercise, whether done by a public official or a private citizen, must be attended by constitutional safeguards.
. 512 F.2d 201 (1st Cir. 1975).
. 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Moreover, it is significant that the Pennsylvania legislature has not remained wholly silent with respect to the repairmen’s lien. Pa.Stat. Ann., tit. 6, § 11 explicitly recognizes the existence of such a lien, and the legislature has specified the procedures that must accompany its exercise.
. Such a course would appear to be appropriate, since the repairman, in essence, is alleging that the owner of the vehicle by reason of his refusal to pay is in breach of an express or an implied contract.
. The unilateral nature of the detention of the property that is before us, in my judgment, distinguishes this case from Gibbs v. Titelman and the other authorities dealing with the problem whether self-help repossession under Article 9 of the Uniform Commercial Code constitutes state action.
The self-help repossession cases, such as Gibbs, concerned situations where the creditor acted pursuant to a contractual right. Non-consensual conflict resolution, as I have sought to explain, is a function closely related to sovereignty and should thus be subject to constitutional restraint. Contractual agreements, however, have a different place in our society. Although contractual undertakings are made under a framework of state law, the substance of contracts is generally viewed as a private matter, and not as action of the state. This attitude is underscored by the constitutional proscription of laws which impair the obligation of contracts. U.S.Const., Art. I, § 10, cl. 1. Thus, in the absence of a close nexus between the state and the contract in question, it would seem that action taken pursuant to a contractual right is not state action. Cf. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Braden v. University of Pittsburgh, 552 F.2d 948 (3d Cir. 1977).
The distinction, for state action purposes, between acting pursuant to a contract and acting in a unilateral manner pursuant to a right granted by state law has been recognized by other federal courts. In Culbertson v. Leland, 528 F.2d 426, 429 (9th Cir. 1975), the Ninth Circuit invoked this reasoning in distinguishing its conclusion that detention pursuant to a landlord’s lien was state action from its decision in Adams v. Southern Calif. Natl Bank, 492 F.2d 324 (9th Cir. 1973), cert. denied, 419 U.S. 1006, 95 S.Ct. 325, 42 L.Ed.2d 282 (1974), which held that self-help repossession is not state action. See also James v. Pinnix, 495 F.2d 206 (5th Cir. 1974) (self-help repossession not state action; distinguishes Hall v. Garson, *148430 F.2d 430 (5th Cir. 1970) where landlord’s lien was declared to be state action). But see Culbertson v. Leland, 528 F.2d 426, 436 (9th Cir. 1975) (Choy, J., dissenting).
. 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).
. 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).
. See id. at 341, 89 S.Ct. 1820.
. Although I have concluded that due process has not been violated in this case, this should have no effect on the question whether due process standards should be imposed upon the exercise of common law liens. This is so because it is possible that in other circumstances the requisite procedures might not be afforded to debtors.
. Various suggestions for reform are presented in H. Friendly, Federal Jurisdiction: A General View, Ch. IV (1973).